Category: Writing aboard the Kenya Airways: A story on coming to Rwanda for the first time

Published on Sunday, 12 June 2011 05:35

Written by Dr. Alfred Lokuji, The New Sudan Vision (NSV), newsudanvision.com

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(Juba, South Sudan) - In the brief time that I have, I would like to share with you my thoughts and perceptions on ideas that have a bearing on one of our immediate concerns – charting the constitutional path by which South Sudan hopes to be governed now and in the future.

I shall briefly share with you my take on the philosophical foundations of government, taking you briefly through - from its embryonic form anchored on rule by divine right through to modern times, where it is assumed that sovereignty resides in the citizens that constitute the polity. The build-up of human ideas and experiences about the governance of society has mushroomed to the point where political discourse can easily be about autocrat or democrat, citizen vs. the state, cabinet or presidential government, centralized or decentralized (even devolved), unitary or federal, even confederal!

I do not suffer from any illusions that I am giving you definitive statements on what must be done in this nascent nation of ancient nationalities. However, afford me the confidence that I shall sufficiently challenge listeners and provoke them into exploring the relevance of the ideas and experiences of humanity to their own condition and situation.

Philosophical foundations of government

I suppose one may conclude that when Adam and Eve were rather rudely evicted from that wonderful picnic spot, they were not sure how they would live out there. I am a bit certain that the two love-birds did not have much of a problem as to how they might co-exist from one sunrise to the next.

The jump in the bible, from Adam and Eve being declared persona non grata in Eden to “Polities” – governance of a collection of people is, as is the style in narratives of that genre, rather truncated. What we find, from the early communes established by the descendants of Adam & Eve, to later full-blown “sovereign” nations/empires ruled by autocrats, sanitized by notions of divine anointment.

The Greek city-states style of government must have come as a surprise, and probably blasphemous for their contemporaries who could see no other foundation for governance other than divine anointment. In spite of those advancements in the thinking about government, you all are aware of how they solved the problem of professors who they convicted for polluting the minds of their youth.

Let me jump to the emergence of a thinking more relevant to us. Thomas Hobbes (1588-1679), writing in the 17th century (The Leviathan) argued thus: Human beings left alone to the pursuits of their individual interests would live a brutish life as they selfishly compete in the arena of nature. It is in quest for personal safety and security that human beings might come to recognize that it pays off to surrender some individual rights to a ruler in exchange for regulated though competitive, nevertheless, peaceful living. Although Hobbes has been seen by students of philosophy as an apologist for absolutism, it should not be lost that his fundamental argument has to do with surrendering individual rights so as to prevent living the vicious life of brutes in the wild.

Let me jump to John Locke (1632-1704) – who planted some of the seeds of libertarianism, arguing that value addition through one’s labour constituted personal property that a just government is obliged to protect. It is from reading Locke and others that Thomas Jefferson (1743-1826) at only age 33 in 1776 could write: “We hold these truths to be self-evident, that all men are created equal, and that they are endowed by their creator with certain inalienable rights. That among these are life, liberty, and the pursuit of happiness!” He went on to argue that it is upon these concepts that governments are constituted among men and women! A government that fails to fulfil these obligations has to be overthrown! He even went so far as to suggest that one generation has no right to bind future generations by a rigid constitution – i.e. each generation should review the constitutional terms that bind them as a people!

Fig. 1 Constitutional Bonding

Constitution

Executive

Legislature

Judiciary

Citizens

Allow me to move on to the practice of Centralized / Unitary Governments.

His Majesty’s government – Centralized

There is probably no better historical example of a Unitary government than “Her Majesty’s Government” in the United Kingdom! England has a colourful history of the divine right of kings. When the virus of “representative government” infected England, its Parliament challenged the throne over its own understanding of the answer to the question: Who represents the people. King’s John’s monopoly of power was decisively redefined by the Magna Carta in 1215. The execution of King Charles by Oliver Cromwell in the 17th century was an ominous event in the history of royalty. The vote for separation by the 13 colonies of the new world against George III was most certainly a lesson never to be forgotten.

Constitution

Legislature

Central Government

Provinces

Municipalities

Localities

Judiciary

Fig. 2 Unitary Government

What is to be noted here is the pride taken in an “empire upon which the sun never sets” from the British Isles, to Africa, India, Australia & New Zeland, North America and the Caribbean!

“Self-government” generally began only a year or two before independence – within the Commonwealth!

Rule of localities at the pleasure of “Her Majesty’s Government” – not by constitutional right! That such a tiny island could place itself at the apex of management of the public affairs of such an extensive part of the world should never be lost sight of.

Federalism – the nation: “Ex pluribus Unum”

The explosion of a people-based revolution in America ushered a new era in government among mankind in such a way that its effects are yet to come to an end. The French followed very quickly by their own understanding of “liberte, egalite, et fraternite”! Anyone with a sense of humour should certainly appreciate their challenge of royal power by their spontaneous destruction of the Bastille – symbol of injustice, rather than a rehabilitation house for paying reparations to society.

Because the American thirteen colonies had been separate administrative divisions of the British crown, the need to bring them together - yet recognizing themselves as separate - gave birth to their dictum: E pluribus Unum – out of many, One! They created an amazingly successful federal system that has consistently stood the test of time, down to the election of the first black man as President. Their vigorous defence of their rights as citizens and as states, lo, even as counties, has been long recognized as simultaneous, i.e. non-contradictory with their rights as citizens of the American nation.

The Founding Fathers of the United States were scholars. I am sure some of them read Thomas Hobbes. Thomas Jefferson, among many, certainly read Locke and Montesquieu! Out of this collection of ideas, they drew the conclusion that it is possible to be one people, defined and united under one constitution, yet sufficiently appreciable in its variation to allow each of the subsets of the federation to govern themselves through their constitution, without contradiction to the essentials of a nation.

The constitutions, both at the level of federation and of the states, are the instruments which constitutionally create a balance between the nation as government and its people, and the states as government and people. All derive their being and legal nurture from the constitution, not at the pleasure of any layer.

I am reliably informed that our friends, the Swiss, have an even more striking constitutional fabric of mini-nations in its cantons – to the extent of having a seven-person national Presidency, exercised by annual rotation. For those who might equate the Presidency with political monotheism, this might be not only mind-boggling but also constitutes the greatest political blasphemy against the Chief Executive! Yet, it is a reality that is testified to by the un-erasable grins of satisfaction on Swiss faces!

Figure 3. Federal Government

Federal

State

Localities

Legislature

Legislature

Legislature

Executive

Executive

Executive

Judiciary

Judiciary

Judiciary

National

State

locality

Cabinet & Presidential Systems

Deciding whether a nation is to be governed through a Unitary or a Federal system is one set of decisions. The other critical set of decisions has to do with whether the mode for constituting government will be a Presidential or a Cabinet (also called Parliamentary) model. In brief, this is how each system works.

a)Presidential:

Executive Powers of government are held by a President, elected separately from the Legislature – both for fixed terms of office. Candidates for the Presidency are known. A presidential candidate may be affiliated with a party and this is only of importance in as far as he is identified with the set of policies advocated by the party. True presidential systems are few and may vary in the way by which their relations with other institutions of governments (legislature and judiciary) are governed. Notable among Presidential systems of government is that of the United States, particularly for the rather elaborate system of checks and balances between the institutions of governance and the States. Many countries that attempted to copy the American system failed to balance powers between their institutions of government – resulting in the evolution of autocratic – or if you prefer, imperial - presidencies.

Fig. 4 Presidential System

Constitution

President

governs

Legislature

legislates

Judiciary

Citizens

b)The cabinet or parliamentary system

The Cabinet or Parliamentary system is an equally successful model for the establishment of a government under a constitution. Instead of electing the Chief Executive and the Legislature in separate ballots as in the Presidential System, voters go to the polls to choose a party that best expresses their policy preferences, desires and tastes in public affairs. The party that wins the majority of seats in Parliament – i. e. has 50% plus one of the total seats, preferably more, is widely recognized as the party that has the right to form the government (Prime Minister, Ministers and other policy level positions)!

The downside of the parliamentary system is that it requires that the party that has formed a government is considered to have lost the confidence of voters should it fail to acquire a majority vote on any policy matter such as the annual budget. The only guarantee that a Cabinet government will govern for the full term is that it retains a plurality of parliamentary votes for the entire term of parliament.

Successful Cabinet systems of government are many: the UK being the classic example. But there are many others, notably Germany, Italy, Japan, India, Israel, Australia, and Canada. Many sub-Saharan countries tried this system at independence. However the inclination towards an imperial presidency – a Chief Executive whose powers supersedes those of the Legislature, or even the Judiciary!

Fig.5 Cabinet/Parliamentary System

Constitution

Prime Minister

Forms government on strength of majority party in the legislature

Judiciary

Legislature

By Political Parties

Citizens

May I now point out one very important proviso: both the Presidential System as well as the Cabinet system are governed through a Constitution. Furthermore, both systems have recourse to the courts for settlement of any constitutional disputes!

I have extremely briefly introduced a topic that is generally covered at university under different courses lasting at least 10 weeks of instruction at a pace of 3 to 5 hours of face-to-face instruction. This being a very smart audience, it was decided that 45 minutes would do.

So, let me turn to the application of these concepts in the Sudan situation, pre- and post-CPA.

The Sudan till the CPA

The Anglo-Egyptian Condominium over Sudan cannot be said to resemble any of the prevalent types of government I have just gone over. The philosophy underpinning that rule was the very philosophy rejected by the Americans in 1776, the French about a decade later—and by hordes of other colonized peoples after WWII. When it got “Self Government” in 1953, that should have driven the point home that Sudan had been ruled within a Unitary system from London.

What never ceases to amaze me is that most colonial peoples, including the Sudanese very soon forgot what was wrong with colonialism. In the language of Dependency theorists, the satellite states of London or Paris very soon became centres of new political constellations that created their own satellites and demanded they not fall off their prescribed orbit.

Upon independence Sudan had hoped to do the ballet of the Cabinet System of Government, with the Queen replaced by a Ceremonial President. The Parliamentary system could not work under parties whose voters committed even before polls were announced. The Umma and the Khatmiya were family affairs, rather than political parties. Neither the Democratic Unionists nor the Communists were that much different.

If the political unlevel ground would not permit the Sudan to experiment successfully with the Cabinet System, the political terrain that gave the political houses their zonal exclusionary rights more firmly mitigated against any one ascending to a US-type presidency. The discomfort with either systems of government is what has given Sudan a quilt-like history of civil-military regimes since independence.

In spite of the NCP government toying with the idea of Federalism long before the CPA, the 26 states have actually been its administrative provinces – nowhere approaching true federalism. In fact, the tendency in Khartoum, long before the NCP came to power, is that the Southern Sudanese call for a federal system from independence was just a ploy for separation. The NCP’s federal claims, were they valid, would have taken care of the demands by Darfuris, Bejas, Angassana, and Nuba – thus strengthening the Sudan in its diversity!

In one word, the Sudan has never been federal before the CPA – if anything, it has had a fatal attraction to rigid centralization, without any devolution of actual powers – but very unique in the devolution and distribution of blames for the failures in constructing a Sudanese nation.

The southern Sudan from the CPA

Ironically, it is after a long and bitter war that only Southern Sudan has come the closest to enjoying a federal status vis-à-vis Khartoum. It is doubtful that Khartoum has the hindsight to recognize that the CPA formula could settle all the problems of the Sudan without necessarily splintering the Sudan along the fault-lines that are so easily detectable.

The federal-type association between Khartoum and Juba, brought about by the CPA is not as apparent within Southern Sudan—that is, between Juba and the ten state capitals. Right from the establishment of government in 2005, there seems to have prevailed an unfathomable mentality to the effect that we need the federal arrangement in the Interim Period between Khartoum and Juba, but not between GOSS and the Ten States of Southern Sudan.

First and foremost, within GOSS itself, the line of delineation between the three institutions of government have not been distinctly clear. More worryingly, the Judiciary seems not to have exercised any powers of judicial review – even when the opportunities existed. It is probably excusable on the grounds that constitutional courts also needs a plaintiff—someone or institution that raises a legal complaint.

The primary suspect for the failure of a full-blown federal system is the legacy of centralization. My hunch is that the would-be implementers of federalism in Southern Sudan are not sufficiently weaned from centralization tendencies. Due to this, it is extremely tempting to consider that Administrative Decentralization (administrative devolution of duties) is Constitutional Decentralization (Federalism – devolution of powers by constitutional means between the federal constituent members of the federation).

Challenges

Having observed our government in operation over the last six years, I believe the following are among the major challenges we must confront along the way to establish a genuine federal system.

GOSS

The Government of Southern Sudan itself:

As presently constituted, the GOSS has highly centralized governance programs, in spite of the fact that the CPA and the Interim Constitutions derived from it provide for clearly federal arrangements.

Briefly and to the point:

There is no reason why GOSS should not let go of all responsibilities in education up to secondary level to the States

There is no reason why GOSS should be playing the star role in Agriculture in general, and extension services in particular

GOSS has no compelling reason to continue to run basic / public health

GOSS does the concept of federalism disfavour by running public security from the Ministry of Interior instead of leaving this function primarily to the states. Does traffic police need to be a federal function?

With regard to governance institutions, there needs to be developed clearer jurisdictions of primary responsibility:

I.The Legislature – is in charge of legislation, policy adoption, and budgeting (both revenue and expenditure. It should not be kowtow to the Executive Branch – in fact, it should hold the executive department of government accountable as well

II.The Executive – needs to cultivate the understanding that it is NOT a supreme agency and only holds powers defined and limited by the constitution. For example, it should avoid meddling in state affairs (such as the appointments of state Ministers and County Commissioners) as much as possible

III.The Judiciary – needs to become more assertive of its powers, especially Judicial Review. Judicial functions are not just about criminal and civil procedures, but also about the constitutionality of actions by citizens or any of the institutions of governance

The states

I.The Legislature – State legislatures are much more than salaried employment, they play the same roles for the state as the federal SSLA plays at the GOSS (soon ROSS) level.

II.The Executive – Governors need to cultivate and promote the understanding that they do not hold the same position as Pontius Pilate – who can change his convictions when threatened with the prospects of a negative report to Caesar!

The State Executive branch also has powers emanating from the state constitution and limited thereby!

III.The Judiciary – By no stretch of the imagination is the state judiciary an administrative extension of the federal judiciary at the GOSS level. Yes, the GOSS level judiciary may also exist in states solely for adjudication of cases related to GOSS laws. The mere fact that there does exist a legislature at the level of states implies the existence of a judiciary to adjudicate all legal matters at that level.

The counties

Governance Functions at the level of counties should be replications of what has been stated about states. To be sure, there is some lack of clarity on their constitutional place. This should be a matter to be decided by the states – although some uniformity might be desirable.

Conclusion

I humbly submit that if South Sudan is to be a federal state, its constitution should not only say so, and it follows that its servants should treat the constitution as a sacred document that delegates to and limits the powers of any institutions. Fundamentally, all powers are derived directly from the constitution and not from any one office.

However, should there be a desire to revert to the Unitary system, the constitution should not mimic federalism, and constitutional governance remains the underpinning principle.

Dr. Alfred Sebit Lokuji is Associate Professor & Acting Dean, College of Community Studies & Rural Development, University of Juba. The Speech was delivered at Juba Beijing Hotel, under sponsorship of GIZ, German Ngo. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..